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‘Frozen in time’? The war crimes trial in Bangladesh July 9, 2009

Posted by southasiamasala in : Bangladesh, D'Costa, Bina , trackback

Bina D’Costa

Photo by Ashfaq Mahmud, used under a Creative Commons license. Click image for details.

‘Justice must not only be done, but must be seen to be done’.

The Pakistani newspaper Dawn reported on May 14, 2009 that Pakistan’s Foreign Office “rejected Bangladesh’s demand for an apology over the alleged [emphasis added] 1971 atrocities”. The official response was that Bangladesh should not be “frozen in time” but rather move ahead. Pakistan advised that Bangladesh should “let bygones be bygones” and hoped that relations between the two countries would not become hostage to the past.

The most recent tension arose from the Bangladesh parliament’s adoption of a resolution in early 2009 to try the alleged war criminals under the International Crimes (Tribunals) Act 1973 (adopted on 3 December, UN Resolution 3074). The United Nations has also announced that it would assist Bangladesh in designing and setting up a war crimes tribunal.

Pakistan attracted global condemnation because of its brutal army crackdown in 1971 in East Pakistan (now Bangladesh) – an event that resulted in mass atrocities and genocide. Estimates vary, but the widely accepted figure is that between one to three million people perished during the nine months of conflict, and a further eight to ten million were forced to leave their homeland. Also, 200,000 women were victims of rape and sexual violence, with 25,000 rapes resulting in forced impregnation. In addition, at least 30,000 Biharis and West Pakistanis were killed as a result of the conflict.

Why now?

India and Pakistan signed the Simla Pact in 1972. There followed a series of meetings with Pakistan and Bangladesh, in which India agreed to return the 93,000 prisoners of war (PoWs) to Pakistan. As a consequence of intense diplomatic negotiations around these meetings, Bangladesh’s new leaders agreed in 1974 not to prosecute the PoWs, except for 195 prisoners who were accused of war crimes, crimes against humanity and genocide.

Three important factors contributed to the rise of the current justice-seeking movement. First, following the declaration of a state of emergency by the caretaker government and the military ‘takeover’ behind the scenes in 2007, civil society groups intensified their demands for the trial of alleged war criminals. The groups assessed that the interim military-backed government would be more sympathetic to the movement.

Secondly, the normative values attached to the voter awareness campaigns by various agencies and civil society in 2008 focused heavily on democratisation and justice mechanisms. This contributed to the pledge by the now governing Awami League to address the war crimes issue should they returned to power.

Finally, important factions of the armed forces, led by the Chief-of-Staff, General Moeen U. Ahmed, supported the move to proceed with the war crimes trial. It was reported in the media that he approached the US and Pakistan to provide crucial documents to support the trial.

The Pakistan-Bangladesh Relationship

Pakistan is watching this recent move in Bangladesh cautiously. Bangladesh has raised the question of individual and collective accountability of the Pakistani state in both formal and informal meetings. It has stated that it is imperative for Pakistan to apologise for the genocide and mass atrocities of 1971, share assets and also repatriate the Biharis, who still remain in various camps in Bangladesh. Pakistan argues that this matter stands resolved under the April 9, 1974, tripartite agreement, under which Pakistan had stated ‘regrets’, but did not offer any formal apology. Some human rights and women’s rights groups from Pakistan on various occasions have offered public apologies.

Pakistan refuses to offer a formal apology, even as a symbolic gesture. For Pakistan this is a past  ‘distraction’ during a time when it is facing insurmountable internal problems and is on the verge of a state ‘failure’.

It could, however, be argued that the Pakistani political and military elite’s continued denials of grave injustices committed against its own citizens in the ‘recent past’ entrenched deep injustice as a legacy that is now intrinsic in its political culture of inequality and inequity. This legacy is reflected in Balochistan and Sind; in widespread militarisation of society; and in gradual extremism that generated a devastating impact on the everyday lives of ordinary people of Pakistan.

While the trauma of 1971 evokes profound emotions, Bangladesh must also be sensitive to these internal turmoils in Pakistan, and especially to the traumatic experiences of ordinary citizens and displaced populations in Pakistan. Establishing a civil society network that reaches across the bitter historical divide and promotes strategic dialogue about how meaningfully to deal with the past would be one crucial step towards reconciliation and healing for both sides.

The Future

There are, of course, some serious challenges ahead. Some of these are briefly noted here, along with opportunities for future reconciliation.

First, the Bangladesh government and the civil society must respond to the domestic opposition, which argues that the justice-seeking movement and consequent official actions are counter-productive. The government should especially respond to the claim that the demands for justice are a political stunt to shift attention from important issues such as the economic slump and price hikes.

Secondly, the time gap between when the war crimes took place and the proposed establishment of a civil and temporary tribunal have given the defendants time to destroy crucial evidence.

Thirdly, some of the most daunting challenges are logistical. If the war crimes trial is to succeed, an enquiry commission must be formed to investigate, gather evidence, and identify and recommend the arrest of some of the most senior and infamous war criminals in the first instance. The proposed commission must also consider the possibilities of a simultaneous truth and reconciliation commission (TRC).

Finally, the finances of the proposed trial must be sorted out. The media has reported that following the demand of the Law Ministry, the Bangladesh Cabinet has approved 10 crore taka (approximately US $1.5 million) for this trial. This budget is not going to satisfactorily cover the costs relating even to the domestic judicial process.

The current political environment in favour of a trial may not reoccur and if the trial does not succeed there will be significant justice fatigue that would obstruct any possible future processes. It is important to ensure that the ordinary people who experienced violence during the war have meaningful access and are encouraged to participate in the proposed commissions and trial. If these justice processes are considered to be elite or middle-class based initiatives, then the expected impact of the trial would be seriously undermined, its legitimacy challenged and people would feel cut-off from the entire initiative. The success of the proposed trial of alleged war criminals will be measured by its ability to create a legacy for future generations, not only in Bangladesh, but also for the global justice agenda.


1. Md Khan - July 24, 2009

Good feature

2. Saif Samir - November 24, 2009

Pakistan Govt. must apologize to Bangladesh for 1971 genocide!

3. M Z HAQ - December 18, 2009

Good article, but what did the author want to mean by- “most recent tension arose from the Bangladesh parliament’s adoption of a resolution in early 2009 to try the alleged war criminals under the International Crimes (Tribunals) Act 1973 (adopted on 3 December, UN Resolution 3074).” is not clear. Did Bangladesh adopt that 3074 resolution as national law, i.e., the International Crime (Tribunal) Act 1973?

4. Dev Kumar Dutta - February 26, 2010

Good luck to the Tribunal and best wishes to the people of Bangladesh. My roots too, are in Bangladesh and I also feel the pain.